Webster v Lampard [1993] HCA 57

High Court of Australia Mason C.J. Deane, Dawson, Toohey and McHugh JJ. Webster v Lampard [1993] HCA 57

ORDER Appeal allowed with costs. Set aside the order of the Full Court of the Supreme Court of Western Australia and in lieu thereof:

(i) allow the appeal to that Court with costs; and

(ii) set aside the order of Master Bredmeyer and in lieu thereof order that the application for summary judgment be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 14 Mason C.J., Deane and Dawson JJ.

By a deed of 15 May 1986, Banning Holdings Pty. Ltd. ("Banning Holdings") let to the appellants, Mr. and Mrs. Webster, the Yellowdine Oasis Motel and Roadhouse ("the premises") at Yellowdine, near Southern Cross, in Western Australia. The term of the lease was three years with two options of renewal, each for a further period of three years. A dispute arose between landlord and tenants about a variety of matters, including repairs and improvements to the premises, the payment of commission on sales of petrol and liability for rent. On 21 December 1988, Mr. Banning of Banning Holdings, accompanied by a number of persons including the respondent, went to the premises. The events which followed culminated in the eviction of Mr. Webster from the premises. At the time, the respondent was a sergeant in the Western Australian Police Force stationed at Southern Cross. It will be convenient to refer to him as "Sergeant Lampard".

Mr. and Mrs. Webster instituted proceedings in the Supreme Court of Western Australia against Banning Holdings for injunctive and other relief. Subsequently, the proceedings were expanded to add Sergeant Lampard as a defendant. The amended statement of claim alleged factual matters which, if established, would found a conclusion that no ground had existed for a termination of Mr. and Mrs. Webster's lease of the premises and that they remained entitled to possession of them. It also contained a number of allegations about Sergeant Lampard's role in the eviction and went on to formulate the basis of the claim against him (for damages, including "penalty damages") as being that he had "acted in contumelious disregard of the rights of the Plaintiffs" in: "(a) wrongfully threatening the Plaintiffs with arrest; (b) wrongfully requiring the Plaintiffs to give up possession of the premises; (c) wrongfully trespassing on the premises occupied by the Plaintiffs." In his statement of defence, Sergeant Lampard did not object to the amended statement of claim on the ground that it failed adequately to identify the cause or causes of action against him. He denied or put in issue a number of the factual allegations and raised two statutory defences. It is with those statutory defences that the present appeal is ultimately concerned. The first is a defence under s. 47A of the Limitation Act 1935 WA. The second is a defence under s. 138 of the Police Act 1892 WA.